Supreme Court: "Order to Demolish Lighting Tower at Adjustment Stadium Adjacent to Permitted Zone After 18 Years Is Illegal"

The Supreme Court has ruled that the order to dismantle a lighting tower illuminating the turning point, which is essential for night races at Misari Rowing Stadium, 18 years after its installation due to its installation without permission in a development-restricted zone, constitutes an abuse and deviation of administrative discretion.

According to the legal community on the 2nd, the Supreme Court's First Division (Presiding Justice Kim Seon-su) overturned the appellate court's partial ruling in favor of the plaintiff in the appeal case filed by the Korea Sports Promotion Foundation against the Mayor of Hanam City, and remanded the case to the Seoul High Court.

The lighting tower installed at the Misari Motorboat Racing Track in Hanam, Gyeonggi. Photo by Korea Sports Promotion Foundation [Image source=Yonhap News]

The court stated, "The appellate court's judgment that the Mayor of Hanam City's disposition regarding the No. 2 lighting tower does not violate the principle of proportionality has errors in understanding the law concerning the principle of proportionality and abuse of discretion, which affected the judgment," as the reason for the remand.

The Foundation installed one electronic scoreboard and 11 lighting towers when constructing the Misari Rowing Stadium (Gyeongjeong Park) in Hanam, Gyeonggi Province, in 2002.

However, in March 2021, Hanam City issued a restoration (correction) order to dismantle the scoreboard and lighting towers, claiming they were illegal facilities installed without permission in a development-restricted zone.

The first-instance court judged that 10 of the 11 lighting towers and the scoreboard were subject to activity permits within the development-restricted zone. However, the No. 2 lighting tower, installed outside the riverbed boundary where the Foundation had obtained a permit, was deemed to have been installed without permission within the development-restricted zone, justifying Hanam City's dismantling order.

Ultimately, the first-instance court ruled to cancel Hanam City's correction orders except for the dismantling order concerning the No. 2 lighting tower, which the Foundation had requested to cancel. The court also ordered Hanam City to bear four-fifths of the litigation costs.

Regarding the Foundation's claim of violation of the principle of legitimate expectation, the court stated, "It is difficult to consider that the defendant made a public representation that the No. 2 lighting tower, installed differently from the permitted activities within the development-restricted zone, was a lawful structure. The fact that the defendant did not take special corrective measures for 20 years does not change this. Furthermore, since the plaintiff installed the No. 2 lighting tower differently from the permitted activities within the development-restricted zone, it is reasonable to find the plaintiff at fault."

The court added, "Considering the purpose of preserving the natural environment around the city and securing a healthy living environment, there is a significant public interest in restricting acts that violate the Development-Restricted Zone Act."

The Foundation appealed, but the second-instance court upheld the same judgment.

The court stated, "Although a considerable period passed after the installation of the No. 2 lighting tower before the defendant made this disposition, there is no evidence that the defendant delayed the disposition despite recognizing the illegality of the No. 2 lighting tower. Rather, it appears the defendant confirmed the illegality during the process of verifying complaints raised by citizens around the time of this disposition."

Regarding the Foundation's claim that the order violates the principle of proportionality, the court acknowledged, "It is recognized that dismantling and reinstalling the No. 2 lighting tower would cost about 930 million KRW, and the operation of the plaintiff's rowing stadium would face some difficulties during the construction period." However, it pointed out, "Considering the legislative intent of the Development-Restricted Zone Act, it is necessary to verify whether installing a lighting tower on this land complies with the activity permit standards, and there is a public interest in enforcing the administrative due process principle through this."

However, the Supreme Court's judgment differed. Unlike the lower courts, the Supreme Court ruled that the Mayor of Hanam City's dismantling order regarding the No. 2 lighting tower violates the principle of proportionality and constitutes an abuse and deviation of discretion, thus it must be canceled.

The court first cited decisions from the Constitutional Court and Supreme Court precedents, stating, "The principle of proportionality is a constitutional fundamental principle naturally derived from the rule of law and applies to all state actions. The means to achieve administrative objectives must be effective and appropriate for the purpose, cause the least infringement possible, and the infringement caused by the means must not outweigh the intended public interest."

The court said, "The No. 2 lighting tower functions to illuminate the turning point during night races, and dismantling it raises safety concerns. It would also significantly hinder referees' judgments and spectators' viewing, effectively restricting all night races at this rowing stadium."

It further noted, "The No. 2 lighting tower is a substantial structure, approximately 34 meters tall, 6.5 meters wide, 7.8 meters deep, and weighing about 18.5 tons. Considering its necessity, even if dismantled, the plaintiff would need to obtain a development activity permit again from the defendant to reinstall a lighting tower with the same function at the same or nearby location, which would require considerable time and financial costs."

The court stated, "The No. 2 lighting tower was installed almost adjacent to the boundary of the permitted site within the rowing stadium grounds. From June 2002, when the stadium's use approval was granted, until March 2021, when this disposition was made, more than 18 years passed during which this land was effectively used as an auxiliary facility site for the rowing stadium's operation. There is no record that a natural environment worth preserving was formed on this land or that the defendant raised issues about the No. 2 lighting tower installation during that time."

It concluded, "Considering the installation location of the No. 2 lighting tower, the usage status of the site, and the installation circumstances, it is difficult to find that the public interest in preventing indiscriminate urban expansion, preserving the natural environment around the city, and securing a healthy living environment for city residents justifies the disadvantage imposed on the plaintiff by the disposition concerning the No. 2 lighting tower."

This content was produced with the assistance of AI translation services.